Archives for September 2017

By Alexander Andresian*

Two weeks ago, President Trump formally announced the beginning of the end of the Deferred Action for Childhood Arrivals (DACA) program.[1] Put in place by the Obama Administration, the DACA program granted work permits to, and deferred the deportation of, the children of undocumented immigrants (herein referred to as “Dreamers”) brought to the United States at a young age.[2] The announcement served as a reminder of the Trump Administration’s capacity for unspeakable cruelty and its willingness to erode the American ideals of fairness and justice in the pursuit of political gamesmanship.

During his announcement, Attorney General Sessions proffered three main justifications for ending the DACA program. The first following the logic that “the law is the law”[3] and therefore the law should be enforced. The second is that DACA hurts American economic interests. The third is that DACA violates the separation of powers implied in the U.S. Constitution. All three justifications, I argue, are incredibly facile and serve only to obfuscate the Trump Administration’s intention to use the livelihood of hundreds of thousands of Dreamers as a political bargaining chip.

The first argument—“the law is the law”[4]—is intellectually and historically dishonest. Laws are important. But laws do not always equal justice.[5] Should the Court’s decision in Dred Scott have been left at “the law is the law?”[6] What about Plessey v. Ferguson?[7] How about the institution of slavery?[8] These were all legal; they were also all immoral.[9] The law as it currently stands allows for the deportation of young adults who were brought to America by their parents, oftentimes as toddlers. We do not hold minors to the same standard as adults in most aspects of criminal law. Why do we do so with immigration? Using “the law” qua moral absolute heuristic seems to only achieve one purpose, namely, giving illiberal decision-making a veneer of legitimacy.

Another argument is that DACA hurts American economic interests. In fact, Attorney General Sessions claimed that “[DACA] denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.”[10] This claim is demonstrably false. Dreamers “outpac[e] the general population in terms of business creation.”[11] If anything, this leads to the opposite conclusion: Dreamers create jobs, not “deny” them.

The third argument is that President Obama’s DACA policy is indefensible on the grounds that it violates the constitutional separation of powers. However, the power of the executive to exercise discretion on these matters is well known. In fact, the Reagan Administration used its own discretion to protect the children of undocumented immigrants who qualified under the Immigration and Control Act, even though the law did not explicitly cover these children.[12] The claim that conferring some form of protective status to a category of individuals constitutes unconstitutional executive overreach conveniently overlooks actions taken by a lionized member of the president’s own party.

The Trump Administration’s disjointed reasoning for rescinding DACA gives heavy credence to the theory that President Trump’s true intention is to callously risk the livelihoods of Dreamers to extract concessions from Congress to achieve his xenophobic campaign platform (e.g., the Wall). His eagerness to work with Senate Minority Leader Schumer and Minority Leader Pelosi to trade a DACA-replacement for increased border security similarly shows his cards.[13]

What will happen with DACA? Nobody knows for sure. But actions have nevertheless been taken to challenge President Trump’s disgraceful decision to end it. Fifteen state attorneys general (as well as the District of Columbia) have already sued the Trump Administration on the grounds that the President’s prior statements and actions indicate that his decision was informed by racial malice.[14] Politicians on both sides of the aisle have also expressed that ending DACA was the wrong decision.[15]

There are many avenues through which litigation, federalism, and advocacy can help to stymie the Trump Administration’s decision to end DACA, but nothing is as certain to improve the lives of the undocu+ community[16] as formal congressional action. Moreover, there are millions of other members of the undocu+ community that do not qualify for DACA. Passing the DREAM Act is certainly a good start, but we need comprehensive immigration reform and we need it now.[17]

*Alexander Andresian is a 3L at Harvard Law School

[1] The DACA program is set to end after a 6-month delay and DACA recipients are allowed to renew their status up until October 5th, 2017. President Trump has set this delay to give Congress time to act.

[2] See Catherine E. Shoichet, Susannah Cullinane, and Tal Kopan, U.S. Immigration: DACA and Dreamers Explained, CNN (Sept. 5th, 2017, 4:21 PM), http://www.cnn.com/2017/09/04/politics/daca-dreamers-immigration-program/index.html.

[3] Daishi Miguel Tanaka, Because the Law is the Law, ACLU of Southern California (Aug. 28th, 2017), https://www.aclusocal.org/en/the-law-is-the-law.

[4] See Daishi Miguel Tanaka, supra note 3.

[5] Id. (“But the law is not justice.”).

[6] See Daishi Miguel Tanaka, infra note 8.

[7] Id.

[8] I would like to credit Daishi Takana, a student at Harvard College and Dreamer, for raising this line of reasoning at Harvard College Act on a Dream’s Fight for Immigrant Rights Rally on September 5th, 2017; Daishi Miguel Tanaka, Because the Law is the Law, ACLU of Southern California (Aug. 28th, 2017), https://www.aclusocal.org/en/the-law-is-the-law (citing Jose Antonio Vargas of Define American).

[9] See Daishi Miguel Tanaka, supra note 8.

[10] Ryan Teague Beckwith, ‘We Cannot Admit Everyone.’ Read a Transcript of Jeff Sessions’ Remarks on Ending the DACA Program, Time (Sept. 5th, 2017), http://time.com/4927426/daca-dreamers-jeff-sessions-transcript/.

[11] Tom K. Wong et al., DACA Recipients’ Economic and Educational Gains Continue to Grow, Center for American Progress (Aug. 28th, 2017, 9:01 AM), https://www.americanprogress.org/issues/
immigration/news/2017/08/28/437956/daca-recipients-economic-educational-gains-continue-grow/.

[12] Mark Noferi, When Reagan and GHW Bush Took Bold Executive Action on Immigration, The Hill (Oct. 10th, 2014, 12:00pm), http://thehill.com/blogs/congress-blog/foreign-policy/219463-when-reagan-and-ghw-bush-took-bold-executive-action-on (“Immigration and Naturalization Service (INS) commissioner Alan Nelson announced he was “exercising the Attorney General’s discretion” to assure that children would “be covered” by legalization. The administration granted a blanket deferral of deportation (logistically similar to today’s Deferred Action for Childhood Arrivals program) for children under 18 who were living in a two-parent household with both parents legalizing, or with a single parent who was legalizing.”).

[13] Maggie Haberman & Yamiche Alcindor, Pelosi and Schumer Say They Have Deal with Trump to Replace DACA, The New York Times (Sept. 13, 2017), https://www.nytimes.com/2017/09/13/us/politics/trump-dinner-schumer-pelosi-daca-obamacare.html?mcubz=0.

[14] Matt Zapotosky, Attorneys General from 15 States, D.C. Sue to Save DACA, The Washington Post (Sept. 6th, 2017), https://www.washingtonpost.com/world/national-security/attorneys-general-from-15-states-dc-sue-to-save-daca/2017/09/06/98bca3b2-930f-11e7-aace-04b862b2b3f3_story.html?utm_term=.a478ddf3fe02.

[15] See, e.g., John McCain (@SenJohnMcCain), Twitter (Sept. 5th, 2017 8:46 AM), https://twitter.com/senjohnmccain/status/905094796003430401?lang=en.

[16] The term “undocu+” is an all encompassing term that refers not just to undocumented individuals, but also their families, many of whom are comprised of individuals who are both documented and undocumented.

[17] I would like to express my gratitude to my colleagues, Michael Adame and Jacob Glick, for their suggestions and edits to this piece.

By Caleb Hall*

The onslaughts of Hurricanes Irma and Harvey are the first recorded instance where two category four hurricanes reached the U.S. Atlantic coast within the same calendar year. As of this writing, the Houston area death toll has reached over eighty, and Hurricane Irma has taken thirty-nine lives in the United States along with thirty seven in the Caribbean. These storms were not caused by climate change, but their impacts were intensified by it.[1] Americans are justifiably turning to governments for aid and planning to avoid future tragedies. Unfortunately, a U.S. Supreme Court decision endangers intelligent disaster response and flood management.

In Arkansas Game and Fish Commission v. United States (2012), the Court made the seemingly innocuous declaration that “government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection,” thereby reiterating that temporary physical occupations are still takings.[2] As a holding there is nothing unique or alarming about Arkansas. A safeguard against temporary takings of property is necessary lest governments erode constitutional protections by repeatedly yet briefly invading property, and subjecting governmental flooding to the Takings Clause is nothing new.[3] The precedent for temporary invasions of property being compensable takings is also longstanding.[4]

However, Arkansas’ surrounding facts do pose troubling ramifications. Arkansas sued the United States for flooding that occurred within the Dave Donaldson Black River Wildlife Management Area from 1994 to 1999. The ephemeral flooding occurred because the federal government recurrently responded to upstream flooding while also catering to the needs of downstream farmers. Arkansas’ taking theory was then premised on the actual damage to the Management Area and lost timber. On remand, this taking claim was upheld in part because the flooding was foreseeable and that the government’s water management was the cause-in-fact of Arkansas’ damage.[5] Foreseeability and causation were found using flood patterns before the dam was built and afterward, but such an analysis neglects the increased flooding and water needs we expect with climate change.

In Arkansas, the federal government released water for farmers while protecting upstream concerns, but was nonetheless punished. The particulars of Arkansas’ Management Area may justify finding a taking, but this result becomes less clear when future torrents create a Faustian choice for dam operators: take downstream land to save upstream water users, or vice-versa? If a levee is deconstructed in response to environmental needs, and flooding resumes naturally, do we still hold the government liable? These dilemmas are aggravated by vested water rights, which compel free flowing water, but were not considered by the Arkansas court.[6]

Due to human action, a warming atmosphere is leading us towards more severe flooding and more demands on governmental water managers, but Arkansas warns governments that responses to address climate change related flooding may expose them to takings claims. To be clear, the government should pay for every taking it commits, but such a requirement potentially places dam operators in a no-win situation where flooding is expected but policy responses are inhibited.

*Caleb Hall is a legislative analyst for the Missouri House of Representatives. This work is the sole product of the author and does not necessarily reflect the views or opinions of the Missouri House of Representatives, its members, or staff.

[1] See Kevin Trenberth, John Fasullo, & Theodore Shepherd, Attribution of Climate Extreme Events, 5 Nature Climate Change 725 (2015) (noting that recent natural disasters were exacerbated by climate change); see also Ning Lin et al., Hurricane Sandy’s Flood Frequency Increasing from Year 1800 to 2100, 113 Proceedings from the Nat’l Acad. of Sci. 12071 (2016) (indicating that New York’s floods will intensify due to sea level rise and climate change).

[2] 568 U.S. 23, 38 (2012).

[3] Pumpelly v. Green Bay Co., 80 U.S. 166 (1872).

[4] United States v. Westinghouse Elec. & Mfg. Co., 339 U.S. 261 (1950).

[5] Ark. Game & Fish Comm’n v. United States, 736 F.3d 1364, 1381 (Fed. Cir. 2013).

[6] Ark. Game & Fish Comm’n, 568 U.S. at 38.

By James Sasso*

Even though the Dallas Mavericks are his namesake, Senator John McCain has embraced the philosophy of the Philadelphia 76ers basketball team: trust the process. For 76ers’ fans, this mantra played like a jukebox stuck on Sting’s Desert Rose; at first it’s tolerable, but quickly it’s maddening. Fans suffered years of horrendous teams while management stockpiled draft picks, sidelined promising young talent, and refused to spend money on free agency. But now, “the process” has blossomed into a young core of talent that could remake the Eastern Conference.

Senator McCain wants Americans to suffer the same pain. In July, he sunk liberal (and many moderate) hearts by casting the deciding vote on the motion to proceed to debate a repeal of Obamacare. He then delivered a powerful speech on how senators must trust the process by actually debating legislation (despite having just voted to proceed on a bill no one had read, let alone seen). And then, finally, he cast the deciding vote against a “skinny” repeal because it had not gone through the proper process. Process, it’s all about process, and McCain joined the steadfast opposition of Senators Lisa Murkowski (R-AK) and Susan Collins (R-ME) to defeat a bill these senators knew had not endured the open debate and evaluation that legislation should experience.

McCain decided that he needed to embody millions of Americans’ frustration with congressional acrimony, obstruction, and partisan wrangling. “Why don’t we try the old way of legislating in the Senate,” he asked, “the way our rules and customs encourage us to act?” According to him, the once-lauded Senate has devolved into a partisan arena bordering on the acerbity apparent in the House of Representatives. The Founders hoped that the Senate’s institutional structure—six year terms and a less-direct link to voters—would insulate it from ideological squabbles and allow it to deliberate and create superior legislation, freed from the need to pacify society’s loudest, most dogmatic desires. For years, McCain served in a body that functioned along those lines, but it, like so many other governmental institutions, has foundered against polarization.

And therein lies McCain’s argument’s power: trust the process. The best type of lawmaking results from a dialectic conversation. As there is no philosopher king among us, no one person, and no one party, has all the answers. While debate will not discover any final “truth” or perfect policy, the best kinds of legislation are those formed when proponents listen to opponents’ critiques and work to overcome them. Today’s politicians have lost faith in the process because they have lost faith in the value of the opposition. On most issues, each side preemptively believes that the other is intellectually bankrupt and that going through the process will only damage potential legislation. Moreover, they face incredible pressure from constituents to pursue a dogmatic course of policy along partisan lines. Trusting the process takes patience and courage. It’s messy and results in “impure” ideological compromises. But Congress should be brave enough to know that this process makes better legislation.

Those experienced in lawmaking, like McCain, or those who are lawyers, like many elected officials, should know this is true. The history of law, especially common law in America, instructs that the best policies are not born unilaterally. Ideally, creating law is a conversation that involves adversarial thinkers whose ideas are brought together into a workable solution. The process takes time, patience, and some misfires. People continue to debate the existence of these laws to improve them. Judges make decisions and the law evolves. The process continues.

It is heartening to see McCain vote against a bill that would accomplish what he has stated his desire to be—unraveling Obamacare—because of a principled call for elected officials to resume their faith in the process. It will be slower than using parliamentary maneuvers to steamroll the opposition, but it will create better law if our representatives deliberate with honesty. As McCain said, “Let’s trust each other. Let’s return to regular order.” Philadelphia 76er fans can attest that with time, the process works. The Founders, like the 76ers, created a system dependent on deliberation, patience, and faith that the process would create optimal results over the long term instead of responding to calls for immediate action. It is far past time that our elected officials again trust the process.

*James Sasso is a 2L at Harvard Law School